The Other Health-Care Mandate: Good Samaritan Turned Upside Down (3149)

President Obama’s latest move will certainly end up in federal court.

One might have expected that, after losing the signature religious-liberty case of the past two decades earlier this month with arguments that his own Supreme Court appointees called “extreme,” President Barack Obama would have learned that conscience is something to be taken seriously.

Alas, no. Yesterday, in a statement from Health and Human Services Secretary Kathleen Sebelius, the Obama administration announced it would not reconsider its “contraceptive mandate” — that is, the unprecedented command it issued last August forcing all private health plans to cover contraceptive and sterilization services, including drugs that cause early-term abortions.

From the outset, the administration sought to camouflage the mandate’s radical assault on conscience by inserting an exemption for “religious employers” who objected to paying for contraception and abortion. It is a pitifully small fig leaf, however.

An organization cannot qualify if it has a “non-religious” aim (such as caring for the sick or feeding the hungry), or if it hires or serves persons of different faiths. In other words, the administration has managed to legislate a grotesque inversion of the parable of the Good Samaritan: A religious group loses the protection of the law precisely because it reaches across boundaries to help the outsider.

Obama’s contraceptive mandate violates the Constitution in several ways. First, it represents an ugly form of what the courts call a “religious gerrymander.” As the administration knew, most employer-based plans already covered contraceptives, but objecting employers — mostly Catholic — were still free not to offer it. The mandate squashes that freedom by filling the so-called “Catholic gap” in coverage. The Free Exercise Clause does not tolerate such blatant discrimination.

Second, the mandate hijacks the governance of religious organizations. As the Supreme Court dramatically (and unanimously) confirmed earlier this month in Hosanna-Tabor Church v. EEOC, the Constitution forbids government interference in the internal affairs of religious organizations.

That underscores why the mandate is unconstitutional: What could be more intrusive than forcing a religious employer to pay for conduct that violates its own moral code?

Most disturbing, however, is the “religious employer” exemption. The shockingly narrow criteria — modeled on a California law ghost-written by the ACLU — segregate religious organizations into favored and disfavored classes. Who gets the exemption? Organizations that focus inwardly on “religious” matters. Contemplative monks might qualify, provided they do not sell Christmas fruitcakes.

Who doesn’t get the exemption? Organizations that undertake projects such as educating students, treating the sick or feeding the poor. Because these groups leave the cloister, the government now declares their consciences unworthy of protection.

This kind of religious quarantine is patently unconstitutional. The First Amendment forbids the state from picking favorites among religious groups. In their comments protesting the exemption, the U.S. Conference of Catholic Bishops put it well: “In effect, [the administration] is purporting to distinguish between religious denominations and organizations that are, so to speak, insular in their workplace and ministry and those that have a missionary outlook. That is blatantly unconstitutional.”

Animating these measures is a sinister form of “tolerance” that should make religious Americans shudder. It is a cast of mind that relegates the genuinely religious to the margins of polite society. It tolerates countercultural views on sexual morality — provided they are kept safely out of sight.

But there is a world of difference between merely “tolerating” religion and guaranteeing its “free exercise.”

Our Constitution does the latter, embracing the distinctive contributions of religious institutions to civil society. Lamentably, the federal government’s contraceptive mandate takes the opposite approach, acting on the crabbed premise that the rights of conscience are a gift of the state, not of God.

Given the mandate’s multitude of flaws, one might have expected Obama at the very least to expand the religious-employer exemption. After all, this is the president who told Notre Dame graduates in 2009 that we should “honor the conscience of those who disagree with abortion and draft a sensible conscience clause.”

Yesterday revealed how empty that promise was, when Sebelius announced there would be no change to the exemption. Objecting religious employers would merely get “an additional year, until August 2013, to comply with the new law.”

This perverse grace period would, Sebelius soothingly assured, “allow these organizations more time and flexibility to adapt to the law.” It is safe to say that thousands of religious employers do not agree. An additional year — an additional thousand years — will not be sufficient to erode what their consciences tell them about the sacredness of sexuality and human life.

Given the administration’s intransigence, it is becoming increasingly apparent that the contraceptive mandate is headed for its reckoning in federal courts and ultimately in the Supreme Court. When it does, the court should find that it violates our Constitution’s most basic commitment to religious liberty.

Comments

Mr. Duncan,
Saw you in a discussion group on CNN tonight on the topic of the Obama mandate for Catholic universities and hospitals to provide contraceptive services or get fined. It is just to scarry to think how quickly our rights, liberties can be taken away. I would like to see President Obama impeached for this. Any chance of that happening?
Is there a petition to sign to overturn this ruling?
It was an enlightening discussion. God bless you in your efforts and Thank you!

Posted by Rick on Friday, Feb 3, 2012 8:39 PM (EDT):

Thank You, Kyle, for articulating this issue so clearly. it is a shame that these same unsuspecting Catholics that expect the Church to turn a blind eye in the pulpits to these issues also expect to be free from the consequences. It is not Mercy for us to accept the sinful choices of our Catholic copngregations while our Church and society have reaped the harvest of having to minister to them in love after they have reaped the whirlwind because of their bad choices. Many of our Catholic brethren think that contraceptives, which also cause abortions are acceptable. However, in many cases these mothers (and biological fathers) are faced with extreme guilt over their bad choices in choosing elective abortions. Because of our “tolerance” we are paying for our Church to reach out to these repentant “sinners” to love them back into the Kingdom. We simply need to stop enabling their sins in the first place by our lack of exposing these lies from the pulpit. On another front Obama has embraced the demonic tactics of the likes of Saul Alinsky, who has made a pact with the devil. His organizations now seek to erode the Catholic Church from within using the Alinsky inspired organizations such as the AIF, Acorn, PICO and other groups going by the high sounding name “Together ______” to draw people of good will into supporting their hidden agendas while they are thinking they are answering their call to Catholic Social Justice. Catholic Campaign for Human Development has fallen prey to thbis one. Saul Alinsky authored “Rules For Radicals” — a handbook for community organizing. Alinsky’s book includes: “Pick the target, freeze it, personalize it, and polarize it.” BEWARE Catholic Campaign for Human Development. We need more awareness of these types of Trojan Horses and to shine the Light on them. In Christ, “All darkness shall come to light”

Posted by DJ Hesselius on Friday, Jan 27, 2012 8:09 AM (EDT):

I hate to say it folks, but he who pays the piper calls the tune. The Church has been very willing to take government money to help in her quest to help the poor. What happened here should have been no surprise. And there is historical prescedent for it all: http://www.mackinac.org/3461

Posted by Sanda on Monday, Jan 23, 2012 11:43 PM (EDT):

Is it not time for a march on Washington for religious freedom?

Posted by Mary De Voe on Sunday, Jan 22, 2012 11:03 PM (EDT):

Can the government redefine the corporal and spiritual works of mercy? Can the government redefine CHARITY, conscience, free will? Can the government redefine persons as property and tax without representing persons?

Posted by Mary De Voe on Sunday, Jan 22, 2012 10:55 PM (EDT):

The spiritual and corporal works of mercy, feeding the hungry, admonishing the sinner, counseling the doubtful, comforting the sorrowful ARE religion as defined as man’s response to the gift of Faith from God.
CHARITY is the expression of generosity, of donating time and talent and free will offerings as man’s response to the gift of Faith from God. Extortion is taxation without representation inflicted upon a people to further a criminal agenda without the informed consent of the governed. Vote against extortion to fund abortion. People who are denied acknowledgement of their conscience are being taxed without representation. Government cannot redefine free will because government has not endowed free will. Government has not endowed life, not sovereign personhood, nor innocence, nor virginity. Government cannot redefine charity, only the person, the citizen, the individual in the inmost recesses of his conscience can define charity for himself through the working of the Holy Spirit, alone. CONGRESS MAKES LAWS, ACCORDING TO THE WILL OF THE PEOPLE, NOT OBAMACARE.

Posted by V. Hoskinson on Sunday, Jan 22, 2012 10:13 PM (EDT):

Let’s pray to God that we get a different President who truly respects the Constitution! Obama wants to drag us all to Hell in a handbasket…in more ways than one!
VH

Posted by Bruce in Kansas on Sunday, Jan 22, 2012 1:09 PM (EDT):

@ rover serton: The bishops are not saying non-Catholics can’t use contraception, or even have insurance that pays for it; they’re saying the government shouldn’t require the Church to buy insurance that pays for it. That is forcing people to violate their religious beliefs - or to choose between violating their beliefs and closing up shop, such as Catholic adoption services in Massachusetts did. I personally think the administration would be delighted if the Church closed up shop and let the local governments and secular businesses buy all the hospitals, colleges and so forth.

Posted by DJ Hesselius on Sunday, Jan 22, 2012 10:01 AM (EDT):

@Rover:

The Church has no power to force you not to use contraception if that is your wish. I fail to understand, however, why the Church should pay for condoms and pills, when it won’t even pay for NFP classes (granted, this may depend on the diocese in question. Mine certainly would not), which IS a Church allowed method of “birth control.” Fertility is NOT a disease. Contraception cannot really be justified as a medicinal drug; indeed, there are studies which do indicate that the Pill is partly responsible for the increase in breast cancer seen amoung younger women in these last few years.

Posted by ADTWF on Sunday, Jan 22, 2012 12:05 AM (EDT):

Sebelius should be excommunicated.

Posted by william white on Saturday, Jan 21, 2012 9:49 PM (EDT):

Wewere allwarned of the capabilites of Obama and we voterd for him anywat,now we will witness the furtur decay of our Nation!

Posted by Michael on Saturday, Jan 21, 2012 9:03 PM (EDT):

rover, religious intolerance is NOT keeping you from being able to use contraception. It is available. Just do not expect the Church to pay for it either directly or indirectly through medical insurance. Better idea, don’t have sex unless you are willing to take on the responsibility of raising a child.

The law is unconstitutional in its entirety. Congress shall make no law prohibiting the free exercise of religion. Obama needs to learn that the free exercise of religion is not simply going to church. It means living the faith. As you know, according to our Catholic faith, the womb is the domain of God. We cannot prevent life through contraception or sterilization, nor can we end life with abortifacient drugs. Contact your senators and representative and tell them to fight this unconstitutional law. It is their duty because they took an oath to uphold the Constitution.

Posted by ML on Saturday, Jan 21, 2012 8:05 PM (EDT):

I hope every single Catholic that voted for this evil president is now feeling the pangs of regret. And I do hope that they also come out in force to vote against him and get him out of the White House. This evil man has done more harm in his four year term than any other president that I know of in my time. And I hope that this case goes to court and it is struck down. We cannot and must not continue to allow this administration to trample over our religious freedom. Freedom of religion IS NOT freedom from religion, and any institution that is Catholic should be exempt from adopting measures that go against their core values and beliefs. God save us all at the pace this country is headed in.

Posted by Dan on Saturday, Jan 21, 2012 7:29 PM (EDT):

Mary, you asked, “what Catholic didn’t see this coming”? I’m not sure I want to know the answer to that question because if all Catholics saw this coming, why did the majority of them vote for Obama?

Posted by Rose on Saturday, Jan 21, 2012 6:56 PM (EDT):

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

- Martin Niemoller

Now is the time to speak up before the Constitutional rights which protect all are declared null and void.

Posted by Mark R. on Saturday, Jan 21, 2012 6:39 PM (EDT):

Rover, the non-catholic who wants contraception wouldn’t have to choose between contraception or job, she would just have to pay for it herself. Religious intolerance is the government forcing religious institutions to pay for things that violate their moral tenets.

Posted by Phil on Saturday, Jan 21, 2012 5:15 PM (EDT):

Does Sebelius go to Mass? Where? Who is her confessor?

Because if she is receiving Holy Communion, as an unrepentant supporter and facilitator of abortions—guess what? That’s right.

Posted by Gene on Saturday, Jan 21, 2012 5:07 PM (EDT):

The Bishops need to again see the movie, “A Man for All Seasons.”

If our religious leaders stand for nothing, then why should Catholics stay faithful? There is really no middle ground.

Posted by Cindy on Saturday, Jan 21, 2012 5:01 PM (EDT):

Thank you. Such a well-written explanation of the situation. Catholics, wake up and stand up for religious freedom.

Posted by JMB on Saturday, Jan 21, 2012 4:04 PM (EDT):

Funny the HHS Secretary is a “Catholic.” The Bishops need to lead their flock and get on the offensive here. The laity, we need to flood our representatives and Senators…the will of the government should not interfere with the practice of our religion. If you do not believe in what the Catholic Church teaches, no one has held a gun to your head to tell you to work for a Catholic organization…If you choose to work for a Catholic organization, than as an EMPLOYEE you must uphold and honor your EMPLOYER’S rules. If I walked into work Monday and told my employer I am going to sue so I can have every recognized Holy DAy of Obligation off to attend Church and that our Friday’s during Lent need to meatless for everyone in the office, I am sure after telling me have my head examined I would be told to find a new job. WE can all get along just fine…..when the government gets involved…things get screwy.

Posted by HermitTalker on Saturday, Jan 21, 2012 3:25 PM (EDT):

It may seem easy at this point to second-guess the decision made by the CHA at the time when they have a large percentage of the US population taking advantage of their health care facilities. The complete Obama agenda was not reveled at first. at this point it is. An opportunity for all aware and concerned citizens to reclaim respect for the Natural Law and defend institutions’ and each person’s conscience which is a key human natural law right and is inviolably constitutional.

Posted by Denise on Saturday, Jan 21, 2012 3:08 PM (EDT):

Rover Serton - “Religious freedom allows you to not use contraceiption. Religious intolerance is keeping me from being able to use it.”

It is not intolerance to expect you to pay for your own contraceptives if you choose to work for a Catholic employer. If insurance coverage is a requirement for you, then you remain free to find another job. Intolerance is forcing Catholics to violate their consciences. No one is talking about outlawing contraceptives except you.

Posted by Quo Vadis on Saturday, Jan 21, 2012 2:48 PM (EDT):

This story shows how horrible (and expensive) Obamacare will be for us.

Another totalitarian rule coming out of this disastrous bill is that hospitals (already reeling from cost increases, withheld Medicare reimbursements, etc.) will soon face draconian fines, (in the millions of $$), for any breach of patient information, even the inevitable accident, such as a doctor leaving his/her laptop computer accessible.

Next time, our legislators, (including the apostate Nancy Pelosi) should actually read the bills they shill..

Posted by liseux on Saturday, Jan 21, 2012 2:39 PM (EDT):

Hello Rover,

Why should anyone get “free” anything, esp. when it’s not free- others have to finance it.

This coverage is without co-pay and without deductible. I don’t want to have another way to pay for abortions, and the birth control pill is abortifacient.

My cousin told me this- OMG. It means OBAMA MUST GO!

Posted by JMB on Saturday, Jan 21, 2012 2:38 PM (EDT):

How do you like that Executive Order now?

Posted by HermitTalker on Saturday, Jan 21, 2012 2:34 PM (EDT):

Sister Kenan and the CHA board made a call back then when they looked at the total package as if affected Catholic health care. The system provides medical care to a huge chunk of the US population in its institutions, I forget the exact percentage. One presumes the CHA board is more aware today. Who at the time could have guessed that the Obama agenda would be so reckless and aggressive at this stage? His personal views were well known, but he was not as open about them, same as his race for POTUS, he was not that overtly pro-abortion in his speeches and media ads. The hope and prayer is that enough of the nation’s large Catholic population will be joined by conscientious other believers of the Christian and other faiths to rid the nation of this un-constitutional, a-moral invasion of the sacredness of the person and human consciences.

Posted by Momof11 on Saturday, Jan 21, 2012 2:21 PM (EDT):

Rover…there is a huge difference between not helping provide and pay for contraceptives by including it on insurance and telling someone that if they use contraceptives they cannot work for you. As far as I know the church does not mandate what their employees choose to spend their own money on. Contraceptives are available for purchase and people are also free to buy private insurance which has the coverage they want. It is wrong to force those who are morally opposed to pay for contraceptive use.

Posted by bk on Saturday, Jan 21, 2012 1:20 PM (EDT):

Acts 5:29
Some Bishops but especially Daughter of Charity Sister Carol Keehan, president and chief executive officer of the Catholic Health Association of the United States…should be ashamed that they have betrayed the Body of Christ…and more so like judas than St Peter.
These clowns (obama and his cronies) told us long before the fact what they were “going to do”...and so now they have done it. Shame on America for allowing this to happen.

Posted by rover serton on Saturday, Jan 21, 2012 12:57 PM (EDT):

I’m torn here. I believe bars should allow smoking if they chose but that requires the waitresses, that dont’ smoke or want second hand smoke, to be in a hazardous job. They could chose to work or be healthy. (I prefer non smoking locations btw).

Similar here, I believe the Catholic Chruch should be able to refuse to offer contraception, but if a non catholic that works for the church organization wants contraception or a job. Difficult situation. Perhaps if the church only hired Catholics, it would be different, but I know some atheists that work in churches.

Religious freedom allows you to not use contraceiption. Religious intolerance is keeping me from being able to use it.

Posted by liseux on Saturday, Jan 21, 2012 12:14 PM (EDT):

Great article. I will use it to educate myself on this topic and write a couple of letters to the editor about our increasing lack of religious freedom in this nation, especially under Obama.

Posted by Gary on Saturday, Jan 21, 2012 11:57 AM (EDT):

I am a single man and don’t want to pay contrceptive coverage because I can not use such converage for my health purposes.

Posted by Wes on Saturday, Jan 21, 2012 11:22 AM (EDT):

Can you believe it? After months of declaring that this bill in total was a disaster the bishops continued to support it but our Democratic legislature and Obama rammed the whole thing down our throats. It is not like we were not warned. You know what happens when you get in bed with the devil.

Posted by JMJ on Saturday, Jan 21, 2012 11:15 AM (EDT):

Just who is it that we can blame for Obama “getting” into office? How about all of those bishops that refused to be men of God and to do what St. Paul would have done, such as excommunicating ALL politicians that support birth control, abortion &/or the acts of homosexuality. These bishops know that more than 50% of “catholics” are living in open sin, and many of these are running around the Altar serving as lecturers, etc.. It is way past the time to be brave and to do what our Holy Father commanded them to due: start preaching on hard subjects in Mass & quit with the useless “homilies” that won’t offend anyone. Of course, they would lose income, which is their greatest fear, if they started to do what needs to be done. We as Americans need to stop OBABANISM now. +JMJ+

Posted by Gene on Saturday, Jan 21, 2012 10:23 AM (EDT):

As if people needed another reason to show this President the door.

Posted by Mary on Saturday, Jan 21, 2012 10:07 AM (EDT):

What Catholic did not see this coming from this “president?” He was taught and did teach Alinsky’s “Rules for Radicals” which is dedicated to lucifer. He is taking order and transforming it into chaos. Right is wrong, wrong is right, up is down, down is up, left is right… this is a scorched earth policy. They seek to redact the Church.

Posted by ADTWF on Saturday, Jan 21, 2012 9:48 AM (EDT):

So, an archdiocese wouldn’t get the exemption, right? Because they also fund projects for the poor, educate those of other faiths (including schools that accept vouchers), and provide other such works of mercy?

This is so appalling, and is such an unprecedented governmental control. Don’t they realize that they have also paved the way for a one-religion nation? *shudder*

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